United States v. Dimasi

United States District Court, D. Massachusetts

May 22, 2017

UNITED STATES OF AMERICA,v.SALVATORE F. DIMASI, Defendant.

MEMORANDUM AND ORDER

WOLF,
D.J.

On
November 17, 2016, the court allowed the Director of the
Bureau of Prisons1 (the "BOP") motion to reduce
defendant Salvatore DiMasi's eight-year sentence to the
almost five years DiMasi had served (the "Motion")
. See United States v. DiMasi, 2016 WL 6818346 (D.
Mass. Nov. 17, 2016) . The Motion was filed pursuant to 18
U.S.C. §3582 (c) (1) (A) (i), which gives the court the
authority to reduce a sentence if the Director requests it
and the court finds that "extraordinary and compelling
reasons warrant such a reduction."

As
fully described in the November 17, 2016 Memorandum and
Order, the court was informed that, in 2012, while DiMasi was
serving his sentence for extortion and related crimes
committed while he was the Speaker of the Massachusetts House
of Representatives, it was discovered that he had cancer in
his neck and tongue. He was treated with chemotherapy and
radiation. This treatment resulted in DiMasi needing to
receive nourishment through a feeding tube for about a year.
DiMasi had been free of cancer since at least July 2013.

Beginning
in 2015, the BOP repeatedly denied DiMasi's requests that
a motion to reduce his sentence be filed pursuant to
§3582(c)(1)(A)(i). However, after the intervention of
the United States Attorney for the District of Massachusetts,
the BOP reconsidered the matter.

In
August 2016, a medical test was done to evaluate DiMasi's
ability to swallow. A BOP doctor interpreted the results as
indicating that: DiMasi's throat had narrowed; he had
great difficulty swallowing; and his condition was serious,
deteriorating, and unlikely to improve. The Medical Director
of the BOP subsequently concluded that "it is medically
indicated that someone be present to assist [DiMasi] with
choking prevention while eating or drinking."
Id. at *3. The BOP could have assigned an inmate
companion to monitor DiMasi while he was eating or drinking.
It chose instead to file the Motion for his early release.

For the
reasons fully explained in the November 17, 2016 Order, the
court allowed the Motion. It explained, in part, that:

Although now cancer free, DiMasi is suffering from a serious
medical condition. The treatment for his cancer has narrowed
his throat, requiring a special diet. He is, however, still
at risk of choking whenever he eats. As previously noted, the
Medical Director of the Bureau of Prisons found that "it
is medically indicated" that DiMasi be monitored while
eating.. This opinion is central to the court's
conclusion that DiMasi's release is justified. The Bureau
of Prisons could provide an inmate companion to monitor
DiMasi when he eats. However, the court finds that it would
be more effective for his family, and professionals it may
hire, to perform this function.

Id. at *4.

The
court also found, however, that the reduction of DiMasi's
sentence was justified only if certain new conditions of
Supervised Release were imposed. More specifically, the court
modified the conditions of DiMasi's Supervised Release
"to include at least six months home confinement, in the
custody of his wife Deborah DiMasi, who [was] ordered to
assure that a family member or professional health aide is
with DiMasi whenever he eats or drinks to minimize the risk
of choking or other harm to DiMasi." Id. at
*24.

In
explaining the reasons for the, six-month period of home
confinement, the court wrote:

Ordinarily, DiMasi would, like other eligible inmates, be
subject to such a six-month transition toward the end of his
sentence. The court finds that the usually required placement
in a Residential Re-entry Center is not appropriate. However,
in view of his medical needs, it is particularly important
that DiMasi serve a six-month period of home confinement to
facilitate his transition to the community, and to develop a
record concerning his current needs and capacity to function
in the community, which will inform the court's decision
concerning what conditions of Supervised Release are
appropriate after the usual transitional period.

Id. at *25. The court also stated that:

After the first three months of his home confinement, DiMasi
may move for a modification of this condition of his
Supervised Release if there is medical evidence to support
such a request. The court may consider replacing the
remaining period of 24-hour home confinement with a curfew.
The court may also consider ...

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